Patna High Court
Arun Kumar vs The State Of Bihar on 5 March, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No 7675 of 2024
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Arun Kumar S/o Ganesh Choudhary, Resident of Azad Colony, Road No.4,
Maripur, P.S.- Kazi Mohammadpur, District- Muzaffarpur, Presently posted as
Head Clerk in the office of District Education Officer, Muzaffarpur.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Education
Department, Govt. of Bihar, Patna.
2. The Additional Chief Secretary, Education Department, Govt. of Bihar,
Patna.
3. The Director, State Education Research and Training Council, Patna.
4. The Regional Deputy Director of Education, Tirhut Division, Muzaffarpur.
5. The District Education Officer, Muzaffarpur, District- Muzaffarpur.
6. The District Programme Officer, (Establishment), Muzaffarpur
7. Sri Satyendra Bhushan, The Then District Education Officer, Muzaffarpur.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr Ram Hriday Pd, Advocate
For the Respondent/s : MrMd Raisul Haque, SC X
Mr K K Singh, AC to SC X
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CORAM: HONOURABLE MR JUSTICE ARVIND SINGH CHANDEL
ORAL JUDGMENT
Date : 05-03-2025
This petition has been preferred by the petitioner
seeking the following reliefs:
"(i) For issuance of an appropriate
writ in the nature of certiorari for quashing the
Memo No 364 dated 13.04.2024 issued under the
signature of respondent No 4 by which ACP &
MACP given to the petitioner has been cancelled
mere on complaint filed by one teacher making
allegation that the petitioner has not passed 2 nd
paper of departmental examination, whereas the
petitioner has declared successful in the
departmental examination and letter to this
Patna High Court CWJC No.7675 of 2024 dt.05-03-2025
2/7
effect has been issued by respondent No 5 on
29.06.2006
and after due verification the
committee constituted for granting the benefit of
ACP & MACP to the petitioner and same is
recorded by the authority in the service book,
moreover in view of law laid down by the
Hon'ble Division Bench judgment reported in
2008, V-III PLJR, 344 by which without
conducting any enquiry no adverse comment
can be made.
(ii) For issuance of an appropriate
writ in the nature of Mandamus commanding
and directing the respondent authority to not
disturb the petitioner in smooth functioning as
Head Clerk in the office of respondent No 5 as
he has declared successful in the departmental
examination which has been admitted by the
authorities on several occasions, apart from this
factual aspect it is also settled law by the
Hon'ble High Cout and the Hon'ble Apex Court
that passing of the departmental examination is
not needed for granting benefit of ACP & MACP
moreover there is also exemption clause - 4 in
notification contained in Memo No 3127 dated
06.03.2018 by which after attaining the age of
50 years.
(iii) For issuance of any other
appropriate writ/writs, order/orders,
direction/directions for which the writ petitioner
shall be found entitled under the facts and
circumstances of the case."
2 Facts of the case, as per the pleadings, are that the
petitioner was appointed as Clerk on 20.03.1990 and subsequently
transferred to various places and lastly in the year, 1997 - 1998, he
was posted at the office of Respondent No 4. During that period,
he appeared in the Hindi Noting Drafting Examination in the year,
Patna High Court CWJC No.7675 of 2024 dt.05-03-2025
1996 and was declared successful. The same has been recorded in
his service book also. Departmental examination was also
conducted in the year, 1999 and Respondent No 3 vide its Letter
No 773 dated 28.08.2002 communicated the District Education
Officer that the petitioner has come successful in the departmental
examination. Respondent No 5 has also issued a certificate to this
effect on 29.06.2006. Subsequently, first ACP has been granted to
the petitioner in the year 2004 and second ACP was also granted to
him vide Memo No 1529 dated 10.11.2016. Thereafter, he has
been granted MACP vide Memo No 2389 dated 31.11.2022. Vide
Memo No 2177 dated 02.11.2023, the petitioner has been
promoted as Head Clerk. At that time, on the basis of one
complaint filed by one Birendra Kumar Ojha, retired Headmaster
against the petitioner mentioning that the petitioner has not
emerged successful in the departmental examination paper 2 even
then he has been declared successful and has been granted ACP
and MACP. Show cause notice has been issued to the petitioner
which has been replied by him. Certain queries were also made
which have also been replied by him. Finally, the impugned order
(Annexure P/13 dated 13.04.2024) has been passed whereby the
first and second ACP and MACP has been cancelled with
immediate effect and also direction was issued for initiation of
Patna High Court CWJC No.7675 of 2024 dt.05-03-2025
departmental proceeding and also direction was issued for
recovery of paid amount on account of first and second ACP and
MACP in one installment. Hence, this petition.
3 Learned counsel for the petitioner would submit that
though the petitioner has cleared both the papers in the
departmental examination even after that if it is found that he has
not cleared any paper then also he is entitled to get benefit of first
and second ACP and the MACP as the passing of such type of
examination is not a condition precedent for grant of ACP and the
MACP. Reliance has been laced by the counsel on the judgment
passed by a Division Bench of this Court in the case of Ramadhar
Thakur -Versus- The State of Bihar & Others, LPA No 599 of
2015 (Annexure P/15). Reliance has also been placed by the
learned counsel for the petitioner on the judgment passed by the
Hon'ble Apex Court in the case of Amresh Kumar Sinha &
Others -Versus- The State of Bihar & Others, SLP (C) No 8219 -
8226 of 2019.
4 Learned counsel for the respondent-State opposes the
argument raised by the learned counsel for the petitioner.
5 I have heard learned counsel for the parties, perused
the impugned order as well as the entire documents annexed with
the petition as well as rejoinder.
Patna High Court CWJC No.7675 of 2024 dt.05-03-2025
6 Undisputedly, after completion of requisite period of
service, the petitioner has been granted the benefit of first and
second ACP and the benefit of MACP. Vide impugned order dated
13.04.2024, the above granted ACPs and MACP have been
cancelled on the ground that the petitioner has not cleared the
second paper of the departmental examination and wrong
information has been given by him to the effect that he has cleared
the second paper. In the case of Ramadhar Thakur (supra), the
Division Bench categorically held that passing of departmental
Accounts Examination is not a condition precedent for grant of
assured career progression under the ACP Rules. The Division
Bench in paragraph 8 of the said judgment categorically held as
under:
"8. As has already been noticed, the
sole plea which is being taken by the
respondents, State of Bihar, to deny the
appellant's claim for grant of Assured Career
Progression is that the provision under sub rule
(5) of Rule 4, which has already been quoted
above, has not been satisfied. It is clear from
the language of sub rule (5) that the
requirements for sanction of financial
progression under the scheme of rules is the
same as prescribed under the
recruitment/service rules for regular promotion
against the vacancies. It is the plea of the
respondents that for grant of regular promotion,
passing of the departmental Accounts
Examination is a condition precedent. However,
no rule governing the service of the appellant
nor any notification has been brought to our
Patna High Court CWJC No.7675 of 2024 dt.05-03-2025
notice to show that for grant of regular
promotion against the vacancies, in the
service/cadre to which the appellant belonged,
passing of departmental Accounts Examination
was a condition precedent."
7 The Hon'ble Supreme in the case of Amresh Kumar
Sinha (supra) also observed and held in paragraph 19 as under:
"19. In view of the aforesaid legal
position coupled with the fact that the
qualification of graduation prescribed is for the
promotion to the post of Accounts Officer rather
than for the grant of in situ promotion on the
non-functional post or for extending the benefit
of ACP which is purely and simply in the nature
of grant of monetary benefit without actually
effectuating any promotion to any higher post,
we are of the opinion that the judgment and
order of the Division Bench of the High Court
impugned in the appeals cannot be sustained. It
is accordingly hereby set aside and that the
judgment of the writ court dated 28.11.2017 is
restored. The appellants are extended the benefit
of ACP, as directed by the writ court."
8 In the light of above judgments passed by this Court as
well as the Hon'ble Supreme Court, it is clear that for grant of
ACP and MACP, there is no requirement of passing the
departmental examination. Therefore, on this ground alone, the
impugned order is liable to be set aside.
9 Accordingly, the impugned order dated 13.04.2024 is
hereby set aside.
Patna High Court CWJC No.7675 of 2024 dt.05-03-2025
10 However, the respondents are at liberty to continue
with the departmental enquiry against the petitioner, if so advised
in accordance with rules and laws.
11 The writ petition is allowed.
(Arvind Singh Chandel , J)
M.E.H./-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 22.03.2025
Transmission Date NA
